Memorandum in Support of Preliminary Approval of California Wage & Hour Class Action Against 8x8

1 BLUMENTHAL, NORDREHAUG & BHOWMIK
Norman B. Blumenthal (State Bar #068687)

E-FILED
Apr 8, 2011 8:00 AM
2 Kyle R. Nordrehaug (State Bar #205975) David H. Yamasaki
Chief Executive Officer/Clerk
Aparajit Bhowmik (State Bar #248066) Superior Court of CA, County of Santa Clara
3 2255 Calle Clara Case #1-10-CV-162413 Filing #G-30947
La Jolla, CA 92037 By D. Kontorovsky, Deputy
4 Telephone: (858)551-1223
Facsimile: (858) 551-1232
5
UNITED EMPLOYEES LAW GROUP
6 Walter Haines (State Bar #71705)
65 Pine Ave, #312
7 Long Beach, CA 90802
Telephone: (562) 256-1047
8 Facsimile: (562) 256-1006
9 Attorneys for Plaintiffs
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
IN AND FOR THE COUNTY OF SANTA CLARA
12
13
14 NIKKI MEIERDIERCKS, an individual; CASE No. 110cv162413
KARIN FLAVETTA, an individual; FRANK (Class Action)
15 TORRES, an individual; on behalf of
themselves, and on behalf of all persons
16 similarly situated, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
17 Plaintiffs, FOR PRELIMINARY APPROVAL OF
CLASS SETTLEMENT
18 vs.
19 8X8, INC.; and Does 1 to 10,

Date: April 29, 2011
20 Time: 9:00 a.m.
Defendants.
21 Dept.: 1
Judge: Hon. James P. Kleinberg
22
23 [Complaint Filed: January 27, 2010]
24
25
26
27
28
MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

E-FILED: Apr 8, 2011 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-10-CV-162413 Filing #G-30947
1
TABLE OF CONTENTS
2
I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3
4 II. DESCRIPTION OF THE PROPOSED SETTLEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
5
III. NATURE OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
6
7 IV. THE SETTLEMENT MEETS THE CRITERIA NECESSARY FOR THIS COURT
TO GRANT PRELIMINARY APPROVAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8
A. The Role Of The Court In Preliminary Approval Of A
9 Class Action Settlement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10 B. Factors To Be Considered In Granting Preliminarily Approval . . . . . . . . . . . . . . . . 7
11 1. The Settlement is the Product of Serious, Informed and
Noncollusive Negotiations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
12
2. The Settlement Has No "Obvious Deficiencies" and Falls Within
13 the Range for Approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
14 3. The Settlement Does Not Improperly Grant Preferential
Treatment To Class Representatives or Segments Of The
15 Settlement Class . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
16 4. The Stage Of The Proceedings Are Sufficiently Advanced
To Permit Preliminary Approval Of The Settlement . . . . . . . . . . . . 13
17
18 V. THE CLASS IS PROPERLY CERTIFIED FOR SETTLEMENT PURPOSES . . . . . . . . . . 14
19 A. California Code of Civil Procedure §382 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
20 B. The Proposed Class Is Ascertainable and Numerous . . . . . . . . . . . . . . . . . . . . . . . 15
21 C. Common Issues of Law and Fact Predominate . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
22 D. The Claims of the Plaintiffs Are Typical of the Class Claims . . . . . . . . . . . . . . . . . 16
23 E. The Class Representation Fairly and Adequately Protected the Class . . . . . . . . . . 16
24 F. The Superiority Requirement Is Met . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
25
VI. THE PROPOSED METHOD OF CLASS NOTICE IS APPROPRIATE . . . . . . . . . . . . . . 17
26
27 VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
28

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1 TABLE OF AUTHORITIES
2
Cases: Page:
3
Ali v. U.S.A. Cab, Ltd.,
4 176 Cal. App. 4th 1333 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5 Barcia v. Contain-A-Way, Inc.,
2009 WL 587844 (S.D. Cal. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
6
Boggs v. Divested Atomic Corp.,
7 141 F.R.D. 58 (S.D. Ohio 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8 Bowles v. Superior Court,
44 Cal.2d 574 (1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9
Cook v. Niedert,
10 142 F.3d 1004 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
11 Dunk v. Ford Motor Co.,
48 Cal.App.4th 1794 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
12
Dunbar v. Albertson's, Inc.,
13 141 Cal. App. 4th 1422 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
14 Dunleavy v. Nadler (In re Mego Fin. Corp. Sec. Litig.),
213 F.3d 454 (9th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
15
Frazier v. City of Richmond,
16 184 Cal.App.3d 1491 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
17 Gautreaux v. Pierce,
690 F.2d 616 (7th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
18
Ghazaryan v. Diva Limousine, Ltd.,
19 169 Cal. App. 4th 1524 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
20 Glass v. UBS Fin. Servs.,
2007 U.S. Dist. LEXIS 8476 (N.D.Cal. January 27, 2007) . . . . . . . . . . . . . . . . 10, 11, 12, 13
21
Green v. Obledo,
22 29 Cal.3d 126 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
23 Hanlon v. Chrysler Corp.,
150 F.3d 1011 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15, 16
24
Hogan v. Allstate Ins. Co.,
25 361 F.3d 621 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
26 Hopson v. Hanesbrands Inc.,
2009 WL 928133 (N.D. Cal. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
27
In re Dun & Bradstreet Credit Servs. Customer Litig.,
28 130 F.R.D. 366 (6th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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1
In re Wash. Public Power Supply System Sec. Litig.,
2 720 F. Supp. 1379 (D. Ariz. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9
3 Kirkorian v. Borelli,
695 F. Supp. 446 (N.D. Cal. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4
Linder v. Thrifty Oil Co.,
5 23 Cal. 4th 429 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6 Louie v. Kaiser Foundation Health Plan, Inc.,
2008 WL 4473183 (S.D.Cal. Oct. 06, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
7
Lyons v. Marrud, Inc.,
8 [1972-1973 Transfer Binder] Fed. Sec. L. Rep. (CCH) ¶ 93,525 (S.D.N.Y. 1972) . . . . . . . 7
9 Officers for Justice v. Civil Service Com'n, etc.,
688 F.2d. 615 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10
Owen v. Macy's, Inc.,
11 175 Cal. App. 4th 462 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
12 Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp.,
323 F. Supp. 364, 372 (E.D. Pa. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
13
Rose v. City of Hayward,
14 126 Cal.App.3d 926 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
15 Sav-On Drug Stores, Inc. v. Superior Court,
34 Cal. 4th 319 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15
16
Sequeira v. Rincon-Vitova Insectaries,
17 32 Cal. App. 4th 632 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
18 Tate v. Weyerhaeuser Co.,
723 F.2d 598 (8th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
19
Valentino v. Carter-Wallace, Inc.,
20 97 F.3d 1227 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
21 Van Vranken v. Atlantic Richfield Co.,
901 F.Supp. 294 (N.D. Cal. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
22
Vasquez v. Superior Court,
23 4 Cal.3d 800 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
24 Weinberger v. Kendrick,
698 F.2d 61 (2d Cir. 1982), cert. denied 464 U.S. 818 (1983) . . . . . . . . . . . . . . . . . . . . . . . 7
25
Wershba v. Apple Computer, Inc.,
26 91 Cal.App.4th 224 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
27
28

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1 Statutes, Rules and Regulations:

2 California Business & Professions Code §17200 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3 California Code of Civil Procedure §382 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
4 California Labor Code §226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5 California Labor Code §226.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
8 California Labor Code §2802 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
9 California Labor Code §2698 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
10 California Rules of Court, rule 3.766 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
11 California Rules of Court, rule 3.769 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
12
Secondary Sources:
13
2 H. Newberg & A. Conte, Newberg on Class Actions (3d ed. 1992) . . . . . . . . . . . . . . . . . . . . . 6, 15
14
Manual For Complex Litigation, (Second), §30.44, 41.43 (1993) . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
15
3B J. Moore, Moore's Federal Practice §§23.80 - 23.85 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
16
17
18
19
20
21
22
23
24
25
26
27
28

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1 I. INTRODUCTION
2 Plaintiffs Nikki Meierdiercks, Karin Flavetta and Frank Torres (“Plaintiffs”) respectfully submit
3 this memorandum in support of the motion for preliminary approval of this proposed class action
4 settlement with Defendant 8X8, Inc. (“Defendant”), and seek entry of an order: (1) preliminarily
5 approving the proposed settlement of this class action with Defendant; (2) approving the form and
6 method for providing class-wide notice; (3) directing that notice of the proposed settlement be given
7 to members of the Settlement Class; and (4) scheduling a Final Fairness Hearing date to consider
8 Plaintiffs’ request for final approval of the proposed settlement, entry of the Final Judgment, and
9 Plaintiffs’ application for attorneys' fees and reimbursement of expenses.1
10 The Complaint alleges misclassification claims for unpaid overtime, meal and rest break
11 compensation, business expense reimbursement and related claims for penalties. Plaintiff and
12 Defendant have reached a full and final settlement of the above-captioned action, which is embodied
13 in the Class Action Settlement Agreement (“Agreement”) filed concurrently with the Court.2 A copy
14 of the Agreement is attached as Exhibit 1 to the Declaration of Kyle Nordrehaug, (“Decl. Nordrehaug”),
15 served and filed herewith.
16 As consideration for this Settlement, the Settlement Total that Defendant will pay under this
17 Settlement is a total of Six Hundred Twenty-five Thousand Dollars ($625,000). This payment will
18 settle all issues pending in the litigation between the Plaintiffs, on the one hand, and the Defendant, on
19 the other hand, including but not limited to, all payments to the Settlement Class, attorney’s fees,
20 litigation expenses, Service Payments to the Plaintiffs, the PAGA payment, and the expenses of the
21 Claims Administrator. All of the Settlement Total will be disbursed pursuant to this Agreement, and
22 no funds will revert to Defendant. See Decl. Nordrehaug at ¶3.
23 The Settlement is fair, reasonable and adequate, and should be preliminarily approved. The
24 Settlement represents 65% of the estimated overtime damages and 40% of the total of the total possible
25
1
26 Assuming the Court signs the Preliminary Approval Order on April 29, 2011, the Plaintiffs
suggest that the Final Fairness Hearing be set for a date that is 130 days out, which would mean
27 September 9, 2011 or as soon thereafter as the Court is available.
28 2
Capitalized terms have the same meaning as contained in the Agreement.

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1 claims including the maximum penalties, assuming these amounts could be proven and obtained at trial.
2 Therefore, Plaintiffs respectfully request that this Court grant preliminary approval of the Agreement.
3 Decl. Nordrehaug at ¶6.
4
5 II. DESCRIPTION OF THE SETTLEMENT
6 Subject to the terms and conditions of this Agreement, the Settlement Total that Defendant will
7 pay under this Settlement is a total of Six Hundred Twenty-five Thousand Dollars ($625,000). This
8 amount constitutes Defendant’s entire financial obligation pursuant to this Agreement (provided that
9 if there is insufficient funds in the residual account to pay Defendant’s payroll tax burden, Defendant
10 shall pay the amount of the payroll tax burden which is not covered by the residual account). All of the
11 Settlement Total will be disbursed pursuant to this Agreement, and no funds will revert to Defendant.
12 (Agreement at §III(A).) The “Net Settlement Total” means the net amount of the Settlement Total
13 available for payment of claims to class members after deducting therefrom the expenses charged for
14 claims administration, attorneys’ fees, reimbursement of attorneys’ expenses, the LWDA share of the
15 PAGA payment and the service awards. (Agreement at §I(V).) Decl. Nordrehaug at ¶16.
16 Subject to the terms and conditions of the Agreement, the Claims Administrator will make the
17 following payments out of the Settlement Total as follows: (1) Settlement Shares to the Claimants; (2)
18 the reasonable fees and expenses of the Claims Administrator in an amount not to exceed $15,000; (3)
19 the payment to the California Labor and Workforce Development Agency in the amount of $3,750; (4)
20 an award of not more than $156,250 (25% of the Settlement Total) to Class Counsel for attorneys’ fees;
21 (5) an amount not more than $25,000 to Class Counsel as reimbursement for litigation expenses
22 incurred; and, (6) an award of not more than $5,000 to each Plaintiff as his or her Class Representative
23 Service Payment. (Agreement at §III(B)-(C).) Decl. Nordrehaug at ¶17.
24 All Unclaimed Settlement Shares or unclaimed funds allocated to Non-Participating Class
25 Members shall be allocated first to payment of the Defendant’s share of payroll taxes on those Wage
26 Portions of the Net Settlement Total, and thereafter, any remaining funds in the Net Settlement Total
27 shall be distributed to Claimants on a pro rata basis relative to their Settlement Shares. (Agreement at
28 §III(C)(5).) If there are not sufficient funds in the residual account to pay Defendant’s payroll tax

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1 burden, Defendant shall pay the amount of the payroll tax burden which is not covered by the residual
2 account. (Agreement at §III(A).) Decl. Nordrehaug at ¶17.
3 Under the Settlement, the Claims Administrator will pay a Settlement Share from the Net
4 Settlement Total to each Claimant who timely and properly submits a Claim Form. The Settlement
5 Share for each Claimant will be calculated by (a) dividing the Net Settlement Total by the total number
6 of work weeks in a covered position during the Class Period for all Class Members and (b) multiplying
7 the result by each individual Claimant’s work weeks in a covered position during the Class Period.
8 (Agreement at §III(C)(1).) One-half (50 %) of each Settlement Share shall be allocated to wages, and
9 one-half (50%) of each Settlement Share shall be allocated to interest and penalties allegedly due to
10 employees. Decl. Nordrehaug at ¶18.
11 Non-Participating Class Members will receive no Settlement Share, and their election not to
12 participate will reduce neither the Settlement Total nor the Net Settlement Total. Their respective
13 Settlement Shares will be retained in the Net Settlement Total for distribution. (Agreement at
14 §III(C)(3).) If a Participating Class Member does not submit a valid and timely Claim Form and
15 therefore does not qualify as a Claimant, the Settlement Share that would have been paid to him or her
16 if he or she had qualified as a Claimant (the “Unclaimed Settlement Share”) will be retained in the Net
17 Settlement Total for distribution (Agreement at §III(C)(4).) All Unclaimed Settlement Shares or
18 unclaimed funds allocated to Non-Participating Class Members shall be allocated first to payment of
19 the Defendant’s share of payroll taxes on those Wage Portions of the Net Settlement Total, and
20 thereafter, any remaining funds in the Net Settlement Total shall be distributed to Claimants on a pro
21 rata basis relative to their Settlement Shares. (Agreement at §III(C)(5).) Decl. Nordrehaug at ¶19.
22
23 III. NATURE OF THE CASE
24 On January 27, 2010, plaintiffs Nikki Meierdiercks, Karin Flavetta, and Frank Torres filed a
25 Complaint against 8x8, Inc. in the Superior Court for the County of Santa Clara. The Complaint alleged
26 the following causes of action: Unfair Competition (Bus. & Prof. Code §§ 17200, et seq.); Failure to
27 Pay Overtime Wages (Labor Code §§ 510, et seq.); Failure to Provide Meal and Rest Periods (Labor
28 Code §§ 226.7 and 512); Failure to Indemnify Business Expenses (Labor Code § 2802); and Failure

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1 to Provide Accurate Itemized Statements (Labor Code § 226). The Complaint was filed as a class
2 action. The Complaint alleges that Plaintiffs and other employees were misclassified as “exempt”
3 employees, and as a result, these employees failed to receive overtime compensation, off-duty meal
4 periods and other benefits. Plaintiffs sought to certify a class composed of themselves and similarly
5 situated individuals and to recover from Defendant wages, interest, penalties, and attorneys’ fees and
6 costs. Decl. Nordrehaug at ¶7.
7 On March 2, 2010, Defendant filed an Answer to the Complaint. In the Answer, Defendant
8 denied the allegations set forth in the Complaint and denied that Plaintiffs suffered any damages as a
9 result of its conduct. Defendant contended that Plaintiffs and Defendant’s other similarly situated
10 employees were properly classified as exempt from overtime. Decl. Nordrehaug at ¶8.
11 On April 29, 2010, Plaintiffs filed a First Amended Complaint which, inter alia, (I) revised
12 certain of the allegations while retaining the material allegations of their claims, and (II) added a claim
13 for civil penalties under the Labor Code Private Attorneys General Act (Cal. Labor Code § 2698, et
14 seq.) based upon the same material allegations. On May 21, 2010, Defendant filed an Answer to the
15 First Amended Complaint. Decl. Nordrehaug at ¶9.
16 Defendant answered each of Plaintiffs’ Complaints, denying the material allegations.
17 Specifically, Defendant contended (and continues to contend) that the Action could not properly be
18 maintained as a class action; that members of the class were properly classified as exempt from state
19 overtime requirements; that Defendant did not fail to pay to any members of the class who are former
20 employees any wages allegedly due at the time of their termination; that Defendant provided accurate,
21 itemized wage statements to members of the class; that Defendant provided meal and rest periods to
22 the members of the class; that Defendant did not fail to reimburse employees for business expenses
23 necessarily incurred in the performance of their duties; that Defendant did not violate California
24 Business and Professions Code section 17200 et seq; and that Defendant is not liable for any of the
25 penalties claimed or that could be claimed in the Complaints. Decl. Nordrehaug at ¶10.
26 On June 7, 8 and 9, 2010, the Defendant took the deposition of each of the named Plaintiffs. On
27 September 15, 2010, Plaintiffs deposed Defendant’s corporate designee Daniel Weirich, and on
28 September 16, 2010, Plaintiffs deposed Defendant’s second corporate designee Marc Cook. Plaintiffs

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1 also served and Defendant responded to three sets of Special Interrogatories, three sets of Requests for
2 Admissions, three sets of Requests for Production, and three sets of Form Interrogatories. Through the
3 Claims Administrator, Plaintiffs distributed the Belaire Notice to the putative class and thereafter
4 received the contact information for the employees who did not opt out. Plaintiffs conducted
5 interviews of putative class members. Plaintiffs also responded to Defendant’s written discovery.
7 On June 25, 2010, the Court conducted a case management conference in the Action. On
8 September 17, 2010, the Court conducted a continued case management conference in the Action, and
9 also held an informal conference to address a discovery dispute that was briefed by both parties. Decl.
10 Nordrehaug at ¶12.
11 Defendant produced the computer system information for each named Plaintiff in April 2010
12 which showed the dates and time of work performed by the Sales Representatives. and, in anticipation
13 of mediation, Defendant also produced this information for all 166 members of the putative class along
14 with the necessary payroll data for all 166 members of the putative class. Decl. Nordrehaug at ¶13.
15 On November 9, 2010, the parties engaged in mediation before David Rotman, a preeminent
16 mediator of wage and hour class actions. At the mediation, the parties, represented by its respective
17 counsel, recognized the substantial risk of an adverse result in the Action and successfully negotiated
18 a class action settlement of this action. The parties executed a Memorandum of Understanding setting
19 forth the basic terms of the Settlement. Decl. Nordrehaug at ¶14.
20 Class Counsel has conducted a thorough investigation into the facts of the class action. Class
21 Counsel has diligently evaluated the Class Members' claims against Defendant. Prior to the Parties
22 executing a “Memorandum of Understanding,” Class Counsel obtained all necessary information
23 concerning Defendant’s employment policies and practices and Class Member data, including relevant
24 salary and time record information for the employees at issue. Based on the foregoing data and their
25 own independent investigation and evaluation, Class Counsel believes that the settlement with
26 Defendant for the consideration and on the terms set forth in this Agreement is fair, reasonable, and
27 adequate and is in the best interest of the Class in light of all known facts and circumstances, including
28 the risk of significant delay, defenses asserted by Defendant, and numerous potential appellate issues.

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2
3 IV. THE SETTLEMENT MEETS THE CRITERIA NECESSARY FOR THIS COURT TO
GRANT PRELIMINARY APPROVAL
4
When a proposed class-wide settlement is reached, the settlement must be submitted to the
5
court for approval. 2 H. Newberg & A. Conte, Newberg on Class Actions (3d ed. 1992) at §11.41, p.11-
6
87. Preliminary approval is the first of three steps that comprise the approval procedure for settlements
7
of class actions. The second step is the dissemination of notice of the settlement to all Class Members.
8
The third step is a final settlement approval hearing, at which evidence and argument concerning the
9
fairness, adequacy, and reasonableness of the settlement may be presented and class members may be
10
heard regarding the settlement. See Dunk v. Ford Motor Co., 48 Cal.App.4th 1794, 1801 (1996);
11
Manual for Complex Litigation, Second §30.44 (1993).
12
The question presented on an application for preliminary approval of a proposed class action
13
settlement is whether the proposed settlement is “within the range of possible approval.” Manual for
14
Complex Litigation, Second §30.44 at 229; Gautreaux v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982).3
15
Preliminary approval is merely the prerequisite to giving notice so that “the proposed settlement . .
16
. may be submitted to members of the prospective Class for their acceptance or rejection.” Philadelphia
17
Housing Authority v. American Radiator & Standard Sanitary Corp., 323 F. Supp. 364, 372 (E.D. Pa.
18
1970). There is an initial presumption of fairness when a proposed settlement, which was negotiated
19
at arm's length by counsel for the Class, is presented for court approval. Newberg, 3d Ed., §11.41, p.11-
20
88. However, the ultimate question of whether the proposed settlement is fair, reasonable and adequate
21
is made after notice of the settlement is given to the Settlement Class and a final settlement hearing is
22
held by the Court.
23
24
25
3
26 In the absence of California law on the subject, California courts look to federal authority.
Vasquez v. Superior Court, 4 Cal.3d 800, 821 (1971). “It is well established that in the absence of
27 relevant state precedents trial courts are urged to follow the procedures prescribed in Rule 23 of the
Federal Rules of Civil Procedure for conducting class actions.” Frazier v. City of Richmond, 184
28
Cal. App.3d 1491, 1499 (1986), citing Green v. Obledo, 29 Cal.3d 126, 145-146 (1981).

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1 A. The Role Of The Court In Preliminary Approval Of A Class Action Settlement

2 The approval of a proposed settlement of a class action suit is a matter within the broad
3 discretion of the trial court. Wershba v. Apple Computer, Inc., 91 Cal.App.4th 224, 234-235 (2001);
4 Dunk v. Ford Motor Co. 48 Cal.App.4th 1794 (1996). Preliminary approval does not require the trial
5 court to answer the ultimate question of whether a proposed settlement is fair, reasonable and adequate.
6 That determination is made only after notice of the settlement has been given to the class members and
7 after they have been given an opportunity to voice their views of the settlement or to be excluded from
8 the settlement. 3B J. Moore, Moore's Federal Practice §§23.80 - 23.85 (2003).
9 In considering a potential settlement for preliminary approval purposes, the trial court does not
10 have to reach any ultimate conclusions on the issues of fact and law which underlie the merits of the
11 dispute, and need not engage in a trial on the merits. Wershba, supra, 91 Cal.App.4th at 239-40; Dunk,
12 supra, 48 Cal.App. 4th at 1807. The question whether a proposed settlement is fair, reasonable and
13 adequate necessarily requires a judgment and evaluation by the attorneys for the parties based upon a
14 comparison of “‘the terms of the compromise with the likely rewards of litigation.’” Weinberger v.
15 Kendrick, 698 F.2d 61, 73 (2d Cir. 1982), cert. denied 464 U.S. 818 (1983) (quoting Protective Comm.
16 for Indep. Stockholders of TMT Trailer Ferry, Inc. v. Anderson, 390 U.S. 414, 424-25 (1968)).
17 With regard to class action settlements, the opinions of counsel should be given considerable
18 weight both because of counsel’s familiarity with this litigation and previous experience with cases
19 such as these. Officers for Justice v. Civil Service Com'n of City and County of S.F., 688 F.2d 615, 625
20 (9th Cir. 1982); In re Wash. Public Power Supply System Sec. Litig., 720 F. Supp. 1379, 1392 (D. Ariz.
21 1989); Kirkorian v. Borelli, 695 F. Supp. 446, 451 (N.D. Cal. 1988); Weinberger, 698 F.2d at 74. For
22 example, in Lyons v. Marrud, Inc., [1972-1973 Transfer Binder] Fed. Sec. L. Rep. (CCH) Paragraph
23 93,525 (S.D.N.Y. 1972), the court noted that “[e]xperienced and competent counsel have assessed these
24 problems and the probability of success on the merits.... The parties’ decision regarding the respective
25 merits of their position has an important bearing.” Id. at ¶ 92,520.
26 B. Factors To Be Considered In Granting Preliminarily Approval
27 A number of factors are to be considered in evaluating a settlement for purposes of preliminary
28 approval. No one factor should be determinative, but rather all factors should be considered. These

-7-
1 criteria have been summarized as follows:

2 If the proposed settlement appears to be the product of serious, informed, noncollusive
negotiations, has no obvious deficiencies, does not improperly grant preferential
3 treatment to class representatives or segments of the class, and falls within the range of
possible approval, then the court should direct that notice be given to the class members
4 of a formal fairness hearing, at which evidence may be presented in support of and in
opposition to the settlement.
5
Manual of Complex Litigation, Second §30.44, at 229. Here, the settlement meets all of these criteria.
6
1. The Settlement is the Product of Serious, Informed and
7 Noncollusive Negotiations
8 This settlement is the result of arms-length and hard-fought negotiations. Defendant has
9 expressly denied and continues to deny any wrongdoing or legal liability arising out of the conduct
10 alleged in the Lawsuit. Nonetheless, Defendant has concluded that it is desirable that this Lawsuit be
11 settled in the manner and upon the terms and conditions set forth in the Agreement in order to avoid
12 the expense, inconvenience, and burden of further legal proceedings, and the uncertainties of trial and
13 appeals. Defendant has determined that it is desirable and beneficial to put to rest the claims of the
14 Settlement Class.
15 Settlement negotiations took place before David Rotman, one of the preeminent mediators of
16 wage and hour class actions in California. In preparation for the mediation, Defendant provided Class
17 Counsel with all of the necessary data, including time records and payroll information for the members
18 of the Class. Plaintiffs analyzed the data with the assistant of their damages expert, Desmond, Marcello
19 & Amster ("DM&A"), prepared damage estimates, and submitted a mediation brief to Mr. Rotman.
20 The all-day mediation session held on November 9, 2010 was contentious and arm's length, and
21 ultimately resulted in a mediator's settlement proposal which the parties accepted. Decl. Nordrehaug
22 at ¶5. Plaintiff and Class Counsel believe that this settlement is fair, reasonable and adequate.
23 As consideration for this Settlement, Defendant has agreed to pay the amount of six hundred
24 and twenty-five thousand dollars ($625,000). This payment will settle all issues pending in the
25 litigation between the Plaintiffs, on the one hand, and the Defendant, on the other hand, including but
26 not limited to, all payments to the Settlement Class, attorney’s fees, litigation expenses, Service
27 Payments to the Plaintiffs, the PAGA payment, and the expenses of the Claims Administrator. Decl.
28 Nordrehaug at ¶3.

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1 Class Counsel has conducted a thorough investigation into the facts of the class action and has
2 diligently pursued an investigation and discovery as to the claims against Defendant. The amount to
3 be paid to each Settlement Class member will be based upon his or her workweeks during the Class
4 Period. Based on Defendant’s data and their own independent investigation and evaluation, Class
5 Counsel is of the opinion that the settlement with Defendant for the consideration and on the terms set
6 forth in the Agreement is fair, reasonable, and adequate and is in the best interest of the class in light
7 of all known facts and circumstances, including the risk of significant delay, defenses asserted by
8 Defendant, the possibility that little or no monetary relief could be awarded at trial, and numerous
9 potential appellate issues. Decl. Nordrehaug, ¶¶ 5 and 15.
10 Here, there can be dispute that the litigation has been hard-fought with aggressive and capable
11 advocacy on both sides. Accordingly, “[t]here is likewise every reason to conclude that settlement
12 negotiations were vigorously conducted at arms’ length and without any suggestion of undue
13 influence.” In re Wash. Public Power Supply System Sec. Litig., 720 F. Supp. at 1392.
14
2. The Settlement Has No "Obvious Deficiencies" and Falls Well Within
15 the Range for Approval
16 The proposed Settlement herein has no "obvious deficiencies" and is well within the range of
17 possible approval. All Settlement Class members will receive an opportunity to participate in and
18 receive payment.
19 In October 2010, the damage estimates to compensate for the amount due for the unpaid
20 overtime was calculated by Desmond, Marcello & Amster (“DM&A”), Plaintiffs’ damage expert, based
21 upon the time record and payroll information obtained from Defendant. Decl. Nordrehaug at ¶6. For
22 the employees in the Settlement Class whose claims are at issue here, the compensation owed to the
23 members of the class for unpaid overtime equaled $947,328. Once estimates for meal break
24 compensation, wage statement penalties, waiting time penalties and other statutory penalties are
25 included, the total maximum damage estimates was $1.56 million. Decl. Nordrehaug at ¶6.
26 The settlement of $625,000.00 represents at least 65% of the total unpaid overtime, and 40%
27 of the maximum value of all claims and penalties, assuming these amounts could be proven at trial.
28 Clearly the goal of this litigation to obtain payment for the unpaid vacation has been met. Decl.

-9-
1 Nordrehaug, ¶6.
2 In Glass v. UBS Fin. Servs., 2007 U.S. Dist. LEXIS 8476 (N.D. Cal. 2007) the federal district
3 court for the Northern District of California approved a settlement of an action claiming unpaid
4 overtime wages where the settlement amount constituted only approximately 25% to 35% of the
5 estimated actual loss to the class. Here the settlement consideration rises well above this range of
6 approved percentages based on the estimated actual loss to the class. Decl. Nordrehaug at ¶6. In Glass,
7 the federal court ruled that the settlement which represented approximately 25% to 35% of the loss
8 to the class was fair, reasonable, and adequate. Id. at 28.4 As a result, this settlement which represents
9 65% to 40% of the loss to the class is most certainly entitled to preliminary approval.
10 Where both sides face significant uncertainty, the attendant risks favor settlement. Hanlon v.
11 Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998). Here, a number of defenses asserted by
12 Defendant presented threats to the claims of Plaintiffs and the other Class Members. Defendant likely
13 would assert that Defendant’s employment practices complied with all applicable Labor laws. For
14 example, Defendant contended that Class Members were barred from recovery by the "administrative
15 exemption" because they perform work consisting of representing the employer with the public,
16 negotiating on behalf of the company, advising and consulting with clients, and engage in sales
17 promotion. See, e.g., Hogan v. Allstate Ins. Co., 361 F.3d 621, 627 (11th Cir. 2004) (Court determined
18 that for insurance salespersons, promoting sales and advising customers regarding sales were
19 administrative rather than production tasks). Defendant also contended that many of the employees
20 were subject to the commissioned salesperson exemption. Defendant argued that, irrespective of the
21 exemption arguments, that the Defendant’s potential overtime liability was minimal because the
22 employees only worked during regular business hours. As to the expense reimbursement claim,
23 Defendant contended that none of the claimed expenses, which entirely consisted of home internet
24
4
25 See also Dunleavy v. Nadler (In re Mego Fin. Corp. Sec. Litig.), 213 F.3d 454, 459 (9th Cir.
2000) approving settlement which represented “roughly one-sixth of the potential recovery”);
26 Hopson v. Hanesbrands Inc., 2009 WL 928133 (N.D. Cal. 2009) (approving settlement where the
payment “represents approximately 30% of the maximum expected lost wages and penalties should
27 Plaintiffs prevail.”); Barcia v. Contain-A-Way, Inc., 2009 WL 587844 , *3 (S.D. Cal. 2009)
(approving settlement of overtime wage class action where the recovery was within the 25% to
28
35% benchmark established in Glass).

-10-
1 connection costs, were reasonably incurred since employees only worked during regular business hours
2 or were actually incurred for work. As to the meal and rest break claims, Defendant maintained written
3 policies permitting and encouraging employees to take meal and rest periods, and therefore could argue
4 that Defendant authorized, permitted and provided meal periods and rest breaks to its Sales
5 Representatives. Decl. Nordrehaug at ¶20.
6 Defendant could also contest class certification by arguing that the question of whether a
7 particular employee had unpaid overtime requires an individual case by case analysis, and the proof
8 of injury would require individualized evidence which would preclude class certification. See e.g. Ali
9 v. U.S.A. Cab, Ltd., 176 Cal. App. 4th 1333, 1350 (2009). There was a significant risk that, if the
10 Actions were not settled, Plaintiffs would be unable to obtain class certification and thereby not recover
11 on behalf of any employees other than themselves. In Dunbar v. Albertson's, Inc., 141 Cal. App. 4th
12 1422, 1431-32 (2006), the California Court of Appeal affirmed an order denying class certification to
13 a class of employees who claimed that they were denied overtime pay because whether the executive
14 exemption applied would have had to have been individually determined for each class member which
15 meant that common issues did not predominate. Similarly, here Defendant would have certainly argued
16 in opposing class certification that individual issues predominated because the applicability of the
17 administrative exemption would have to be separately determined for each Class Member based on
18 their individual experience. While other cases have approved class certification in overtime wage
19 claims, class certification in this action would have been hotly disputed and was by no means a
20 foregone conclusion. Accordingly, class-wide liability was far from certain. Decl. Nordrehaug at ¶21.
21 After vigorous negotiations, the parties agreed to the Agreement recognizing the potential risks,
22 both sides would face if litigation if this Action continued. As the federal court held in Glass, where
23 the parties faced uncertainties similar to those in this litigation:
24 In light of the above-referenced uncertainty in the law, the risk, expense, complexity,
and likely duration of further litigation likewise favors the settlement. Regardless of
25 how this Court might have ruled on the merits of the legal issues, the losing party likely
would have appealed, and the parties would have faced the expense and uncertainty of
26 litigating an appeal. "The expense and possible duration of the litigation should be
considered in evaluating the reasonableness of [a] settlement." See In re Mego Financial
27 Corp. Securities Litigation, 213 F.3d 454, 458 (9th Cir. 2000). Here, the risk of further
litigation is substantial.
28

-11-
1 Id. at *12.
2 3. The Settlement Does Not Improperly Grant Preferential Treatment To Class
Representatives or Segments Of The Settlement Class
3
The relief provided in the settlement will benefit all members of the Settlement Class equally.
4
The settlement does not grant preferential treatment to Plaintiffs or segments of the Settlement Class
5
in any way. All Settlement Class Members will receive the same opportunity to participate in and
6
receive payment. The Settlement Share for each Claimant will be calculated by (a) dividing the Net
7
Settlement Total by the total number of work weeks in a covered position during the Class Period for
8
all Class Members and (b) multiplying the result by each individual Claimant’s work weeks in a
9
covered position during the Class Period. (Agreement at §III(C)(1).) Decl. Nordrehaug at ¶4.
10
In addition, the Plaintiffs will apply to the Court for service awards in the gross amount of Five
11
Thousand Dollars and Zero Cents ($5,000.00) each, in consideration for the services rendered on behalf
12
of the Settlement Class. The $5,000 service award amount to be paid to each of the Plaintiffs is
13
reasonable and falls at the low end of service awards. The Plaintiffs performed their duties admirably
14
by working with Class Counsel, appearing for deposition, responding to discovery and assisting with
15
mediation. Decl. Nordrehaug at ¶25(d). The requested Plaintiff service awards are well within the
16
accepted range of awards. See e.g. Louie v. Kaiser Foundation Health Plan, Inc., 2008 WL 4473183,
17
*7 (S.D.Cal. Oct. 06, 2008) (awarding $25,000 service award to each of six plaintiffs in overtime class
18
action); Glass v. UBS Fin. Servs., 2007 WL 221862, *16-17 (N.D.Cal. Jan. 27 2007) (awarding
19
$25,000 service award in overtime class action and a pool of $100,000.00 in enhancements ); Van
20
Vranken v. Atlantic Richfield Co., 901 F.Supp. 294, 299-300 (N.D. Cal. 1995) (awarding incentive
21
award of $50,000); In re Dun & Bradstreet Credit Servs. Customer Litig., 130 F.R.D. 366, 373 (6th Cir.
22
2003); Cook v. Niedert, 142 F.3d 1004, 1016 (7th Cir. 1998). As explained in Glass, service awards
23
are routinely awarded to class representatives to compensate the employees for the time and effort
24
expended on the case, for the risk of litigation, for the fear of suing an employer and retaliation there
25
from, and to serve as an incentive to vindicate the statutory rights of all employees. 2007 WL 221862
26
at *16-17.
27
4. The Stage Of The Proceedings Are Sufficiently Advanced To Permit Preliminary
28 Approval Of The Settlement

-12-
1
The stage of the proceedings at which this settlement was reached also militates in favor of
2
preliminary approval and ultimately, final approval of the settlement. Class Counsel has conducted a
3
thorough investigation into the facts of the class action. Class Counsel began investigating the Class
4
Members’ claims before this action was filed. Class Counsel conducted significant discovery,
5
including document requests including three (3) sets of Requests for Production, three (3) sets of
6
Requests for Admissions, three (3) sets of Special Interrogatories, and three (3) sets of Form
7
Interrogatories. Class Counsel conducted two (2) depositions of the corporate designated witnesses,
8
and all of the Plaintiffs were deposed. Class Counsel obtained production of all relevant business and
9
payroll records produced through both formal and informal discovery. Class Counsel engaged in an
10
extensive review and analysis of the relevant documents and data with the assistance of experts.
11
Accordingly, the agreement to settle did not occur until Class Counsel possessed sufficient information
12
to make an informed judgment regarding the likelihood of success on the merits and the results that
13
could be obtained through further litigation. Decl. Nordrehaug at ¶22.
14
Based on the foregoing data and their own independent investigation and evaluation, Class
15
Counsel is of the opinion that the settlement with Defendant for the consideration and on the terms set
16
forth in the Agreement is fair, reasonable, and adequate and is in the best interest of the class in light
17
of all known facts and circumstances, including the risk of significant delay, defenses asserted by
18
Defendant, and numerous potential appellate issues. There can be no doubt that Class Counsel
19
possessed sufficient information to make an informed judgment regarding the likelihood of success on
20
the merits and the results that could be obtained through further litigation. Decl. Nordrehaug ¶¶ 23-24.
21
In Glass, the Northern District of California granted final approval of an overtime and meal
22
wage action although in Glass no formal discovery had been conducted prior to the settlement:
23
Here, no formal discovery took place prior to settlement. As the Ninth Circuit has
24 observed, however, "[i]n the context of class action settlements, 'formal discovery is not
a necessary ticket to the bargaining table' where the parties have sufficient information
25 to make an informed decision about settlement." See In re Mego Financial Corp.
Securities Litigation, 213 F.3d at 459.
26
Glass, 2007 U.S. Dist. LEXIS 8476 at *14.
27
Here, Class Counsel was in a significantly stronger position to evaluate the fairness of this
28

-13-
1 settlement than in Glass because they conducted formal discovery and informal discovery, as well as
2 independent investigations and due diligence to confirm the accuracy of the information supplied by
3 Defendant.
4
5 V. THE CLASS IS PROPERLY CERTIFIED FOR SETTLEMENT PURPOSES
6 Plaintiffs contend, and Defendant does not dispute for settlement purposes only, that the
7 proposed settlements meet all of the requirements for class certification under California Code of Civil
8 Procedure §382 as demonstrated below, and therefore, the Court may appropriately approve the
9 Settlement Class as defined in the Agreement. (Agreement at §III(E).) This Court should conditionally
10 certify a settlement class for settlement purposes only that consists of “all persons who worked in
11 California for 8x8, Inc. for one or more weeks between January 27, 2006 and June 30, 2010 as Sales
12 Representatives, Account Managers and/or Account Executives and who were classified as “exempt”
13 from overtime.” (Agreement at §I(F).)
14 A. California Code of Civil Procedure §382
15 Plaintiffs seek certification of this Action for settlement purposes under California Code of Civil
16 Procedure § 382. The California Supreme Court has summarized the standard for determining whether
17 class certification is appropriate as follows:
18 Code of Civil Procedure Section 382 authorizes class actions “when the
question is one of a common or general interest, of many persons, or
19 when the parties are numerous, and it is impracticable to bring them all
before the court....” The party seeking certification has the burden to
20 establish the existence of both an ascertainable class and a well-defined
community of interest among class members. (citations omitted). The
21 “community of interest” requirement embodies three factors: (1)
predominant common questions of law or fact; (2) class representatives
22 with claims or defenses typical of the class; and (3) class representatives
who can adequately represent the class.
23
Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319, 326 (2004).
24
While Defendant reserves all rights to dispute that the Plaintiffs can satisfy any of these
25
requirements, the Parties agree that Defendant will not dispute that these requirements may be satisfied
26
in this case for purposes of this agreed-upon settlement and therefore, the proposed Settlement Class
27
should be certified for purposes of settlement. (Agreement at §III(E).)
28

-14-
1 B. The Proposed Class Is Ascertainable and Numerous

2 Plaintiff brings this action on behalf of current and former employees of Defendant. All of these
3 employees are ascertainable because the exact number of class members can readily be determined
4 through examination of Defendant’s employee and payroll files. Given that the class consists of more
5 than one hundred (100) members, numerosity is clearly satisfied. See Bowles v. Superior Court, 44
6 Cal.2d 574 (1955) (class with 10 members sufficiently numerous); Rose v. City of Hayward, 126
7 Cal.App.3d 926, 934 (1981) (class of 48 members satisfies numerosity requirement.)
8 Here, the approximately 166 current and former employees that comprise the class can be
9 identified and are sufficiently numerous for class certification. Decl. Nordrehaug at ¶25(a).
10 C. Common Issues of Law and Fact Predominate
11 Predominance of common issues of law or fact does not require that the common issues be
12 dispositive of the entire controversy or even that they be dispositive of all liability issues. 1 Newberg
13 on Class Actions, Section 4.25 at 4-82, 4-83 (1992). “Predominance is a comparative concept, and ‘the
14 necessity for class members to individually establish eligibility and damages does not mean individual
15 fact questions predominate.’” Sav-On, 34 Cal. 4th at 334 (citation omitted).
16 Commonality exists if there is a predominant common legal question regarding how an
17 employer’s policies impact its employees. Ghazaryan v. Diva Limousine, Ltd., 169 Cal. App. 4th
18 1524, 1536 (2008) (“[T]he common legal question remains the overall impact of Diva's policies on its
19 drivers, not whether any one driver, through the incidental convenience of having a home or gym
20 nearby to spend his or her gap time, successfully finds a way to utilize that time for his or her own
21 purposes.”) Whether Plaintiff is likely to prevail on their theory of recovery is irrelevant at the
22 certification stage since the question of certification is “essentially a procedural one that does not ask
23 whether an action is legally or factually meritorious.” Linder v. Thrifty Oil Co., 23 Cal. 4th 429, 439-
24 440 (2003).
25 Here, common questions of law and fact, as alleged by the Plaintiffs, are present, specifically
26 the question of whether the sales employees employed by Defendant were “exempt” from overtime
27 under California law. Plaintiffs contend that Defendant had engaged in a uniform course of conduct
28 with respect to the Settlement Class and the only question is whether Defendant’s conduct supports a

-15-
1 meritorious claim for exemption misclassification. Such suits challenging the legality of a standardized
2 course of conduct are generally appropriate for resolution by means of a class action. Decl. Nordrehaug
3 at ¶ 25(b) and (e). Defendant does dispute that commonality actually exists, but will not oppose such
4 a finding for purposes of this settlement only.
5 D. The Claims of the Plaintiffs Are Typical of the Class Claims
6 The typicality requirement requires the Plaintiffs to demonstrate that the members of the class
7 have the same or similar claims as the named Plaintiffs. “The typicality requirement is met when the
8 claims of the named Plaintiff arise from the same event or are based on the same legal theories.” Tate
9 v. Weyerhaeuser Co., 723 F.2d 598, 608 (8th Cir. 1983). In Hanlon v. Chrysler Co., 150 F.3d 1011 (9th
10 Cir. 1998), the Ninth Circuit held that “[u]nder the rule's permissive standards, representative claims
11 are ‘typical’ if they are reasonably coextensive with those of absent class members; they need not be
12 substantially identical.” 50 F.3d at 1020.
13 In the instant case, there can be little doubt that the typicality requirement is fully satisfied. The
14 Plaintiffs, like every other member of the Class, were employed by Defendant and classified as
15 "exempt" by Defendant. The Plaintiffs performed the same type of sales and consulting work as the
16 other members of the Class. The Plaintiffs, like every other member of the Class, claim unpaid
17 overtime wages for work performed in the same job classification. Thus, the claims of both the
18 Plaintiffs and the Members of the Class arise from the same course of conduct by the Defendant,
19 involve the same work performed, and are based on the same legal theories. Decl. Nordrehaug at
20 ¶25(c). The typicality requirement is met as to the common issues presented in this case. While
21 Defendant disputes that Plaintiffs have claims typical of the individuals they purports to represent,
22 Defendant does not oppose a finding of typicality for purposes of this settlement only.
23 E. The Class Representation Fairly and Adequately Protected the Class
24 Plaintiffs contend that the Class Members are adequately represented here because the named
25 Plaintiffs and representing counsel (a) do not have any conflicts of interest with other class members,
26 and (b) will prosecute the case vigorously on behalf of the class. Hanlon, 150 F.3d at 1020. This
27 requirement is met here. First, Plaintiffs are well aware of their duties as the representatives of the class
28 and actively participated in the prosecution of this case to date. They effectively communicated with

-16-
1 counsel, providing documents to counsel and participated extensively in discovery, investigation and
2 negotiations in the Action. Second, the Plaintiffs retained competent counsel who have extensive
3 experience in employment class actions. Decl. Nordrehaug at ¶¶ 25(d) and 26. Blumenthal,
4 Nordrehaug & Bhowmik has extensive experience in class action litigation in California, and has been
5 involved as class counsel in over two hundred (200) class action matters, including many wage and
6 hour class actions. (See Resume, attached as Exhibit 2 to the Decl. Nordrehaug.) Defendant disputes
7 that the adequacy requirement is satisfied, but will not oppose such a finding for purposes of this
8 settlement only.
9 F. The Superiority Requirement Is Met
10 To certify a class, the Court must also determine that a class action is superior to other available
11 methods for the fair and efficient adjudication of the controversy. “Where classwide litigation of
12 common issues will reduce litigation costs and promote greater efficiency, a class action may be
13 superior to other methods of litigation.” Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir.
14 1996). As courts have previously observed:
15 Absent class treatment, each individual plaintiff would present in separate, duplicative
proceedings the same or essentially the same arguments and evidence, including expert
16 testimony. The result would be a multiplicity of trials conducted at enormous expense
to both the judicial system and the litigants. “It would be neither efficient nor fair to
17 anyone, including defendants, to force multiple trials to hear the same evidence and
decide the same issues.”
18
Sav-On, 34 Cal. 4th at 340, citing Boggs v. Divested Atomic Corp., 141 F.R.D. 58, 67 (S.D. Ohio 1991).
19
Here, a class action is the superior mechanism for adjudication of the claims as pled by the
20
Plaintiffs. While Defendant disputes that the superiority requirement may be satisfied, it does not
21
dispute such a finding for purposes of this settlement only.
22
23
VI. THE PROPOSED METHOD OF CLASS NOTICE IS APPROPRIATE
24
The Court has broad discretion in approving a practical notice program. The parties have agreed
25
upon procedures by which the Settlement Class will be provided with written notice of the Agreement
26
similar to that approved and utilized in hundreds of class action settlements. No later than 14 days after
27
the Court enters its order granting Preliminary Approval of the Settlement, Defendant will provide to
28

-17-
1 the Claims Administrator an electronic database containing for each Class Member his or her Class
2 Data. (Agreement at §III(E)(2)(a).)
3 Using best efforts to mail the Notice Packets as soon as possible, and in no event later than 14
4 days after receiving the Class Data, the Claims Administrator will mail the Notice Packets to all Class
5 Members via first-class regular U.S. Mail using the mailing address information provided by
6 Defendant, unless modified by any updated address information that the Claims Administrator obtains
7 in the course of administration of the Settlement. Prior to mailing the Notice Packets, the Administrator
8 shall conduct a National Change of Address database search to verify and update addresses for Class
9 Members. (Agreement at §III(E)(2)(b).) If a Notice Packet is returned with forwarding address, the
10 Claims Administrator will promptly, and not longer than five (5) business days from receipt of the
11 returned Notice Packet, re-mail the Notice Packet to the forwarding address. If a Notice Packet is
12 returned with no forwarding address, the Claims Administrator will conduct a skip trace or computer
13 search to attempt to locate an updated address. If an updated address is located, the Claims
14 Administrator will re-mail the Notice Packet to the updated address within five (5) business days.
15 (Agreement at §III(E)(2)(c)-(d).)
16 The Class Members will have 60 days after the date on which the Claims Administrator mails
17 the Notice Packets to complete and submit to the Claims Administrator the Claim Form. The Claim
18 Form shall include instructions on how to submit the Claim Form, and shall notify Class Members that
19 the Claim Form must be completed, signed and postmarked no later than the deadline for a Class
20 Member to be eligible to receive any Settlement Share. (Agreement at §III(E)(3).)
21 The Notice documents, drafted jointly and agreed upon by the Parties through their respective
22 counsel and to be approved by the Court, includes all relevant information. The Notice documents will
23 include, among other information: (i) information regarding the lawsuit; (ii) the impact on the rights
24 of the Class if they do not opt out; (iii) information to the members of the Class regarding how to opt
25 out of the Class; (iv) the amount of the Settlement Total; (v) the amount of the Class Counsel Fees
26 Payment and the Class Counsel Litigation Expenses Payment; (vi) the amounts of the Class
27 Representatives’ Service Payment; (vii) the amounts being paid to the LWDA; and (vii) the
28 administration fees to be paid to the Claims Administrator.

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1 The Notice explains that Class Members who wish to participate in the settlement shall
2 complete and return the Claim Form pursuant to the instructions contained therein by first class mail
3 or equivalent, postage paid. The Notice also provides that any Class Member may choose to opt out
4 of the Class, and that any such person who chooses to opt out of the Class will not be entitled to any
5 recovery obtained by way of the settlement and will not be bound by the settlement or have any right
6 to object, appeal or comment thereon. The Notice states that all objections to the Settlement by anyone,
7 including members of the Settlement Class, must be filed in the Court and served upon all counsel of
8 record by no later than forty-five (45) days from the mailing of the Notice.
9 This notice program was designed to meaningfully reach the largest possible number of
10 potential Settlement Class Members and advises them of all pertinent information concerning the
11 settlement. The mailing and distribution of the Notice satisfies the requirements of due process, and
12 is the best notice practicable under the circumstances and constitutes due and sufficient notice to all
13 persons entitled thereto. The proposed Notice is accurate and informative. The Notice provides
14 information on the terms and provisions of the settlement; the benefits that settlement provides for
15 Settlement Class Members; the date, time and place of the final settlement approval hearing; and the
16 procedure and deadlines for submitting comments, objections and requests for exclusion and complies
17 with Rules of Court 3.766 and 3.769(f).
18
19 VII. CONCLUSION
20 Plaintiffs respectfully requests that the Court preliminarily approve the proposed settlement,
21 schedule the Final Fairness Hearing, and sign the proposed Preliminary Approval Order, which is
22 submitted herewith.
23
Dated: April 7, 2011 BLUMENTHAL, NORDREHAUG & BHOWMIK
24
25 By: /s/ Norman B. Blumenthal
Norman B. Blumenthal
26 Kyle R. Nordrehaug
Attorneys for Plaintiffs
27
28

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Memorandum in Support of Preliminary Approval of California Wage &amp; Hour Class Action Against 8x8

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Memorandum in Support of Preliminary Approval of California Wage &amp; Hour Class Action Against 8x8

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1 BLUMENTHAL, NORDREHAUG & BHOWMIK

Norman B. Blumenthal (State Bar #068687)

19 8X8, INC.; and Does 1 to 10,

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

1 Statutes, Rules and Regulations:

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

1 Decl. Nordrehaug at ¶15.

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

1 A. The Role Of The Court In Preliminary Approval Of A Class Action Settlement

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

1 criteria have been summarized as follows:

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

1 B. The Proposed Class Is Ascertainable and Numerous

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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Memorandum in Support of Preliminary Approval of California Wage & Hour Class Action Against 8x8

Memorandum in Support of Preliminary Approval of California Wage & Hour Class Action Against 8x8